RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 October 2005
	DOCKET NUMBER:  AR20050001501 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  


Mr. Carl W. S. Chun

Director

Mrs. Nancy L. Amos

Analyst


The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. James B. Gunlicks

Member

Ms. Jeanette R. McCants

Member

	The Board considered the following evidence: 

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's Article 15 dated 27 July 2004 be expunged from his records; his relief and reassignment from recruiting duty be expunged from his records; his special duty assignment pay (SDAP) termination be expunged from his records; he receive back pay and allowances from August 2004 to the present; he receive credit for time in grade for pay, promotion and retirement purposes in the grade of E-6 from 18 October 2004 to the present; and his records be sent to a standby advisory board (STAB) for consideration for promotion to Sergeant First Class (SFC), E-7.

2.  Counsel states the applicant's Article 15 alleged two charges of sexual harassment.  He was reduced to pay grade E-5 and a forfeiture of pay was suspended.  He appealed, but his appeal was denied.  He was subsequently relieved from recruiting duty.  

3.  Counsel states the applicant arrived at the U. S. Army Recruiting Command (USAREC) as a Staff Sergeant (SSG), E-6 with an excellent record and history of performance.  In March 2003, he was asked to judge a "Most Kissable Lips" contest at a local shopping mall.  An allegation of sexual harassment of civilian store employees was made.  The Report of Investigation (ROI) concluded no such violation had occurred.

4.  Counsel states a recruit named Kayla A___ alleged, on 9 March 2004, that the applicant made inappropriate sexual comments to her.  The applicant denied those charges and told the investigating officer (IO) Ms. A___ would do anything to get out of her Army commitment.  Ms. A___'s grandparents confirmed the applicant's representations to the IO.  This charge was not substantiated after a cursory investigation by Captain L___.

5.  Counsel states the applicant moved from Baton Rouge South to Baton Rouge Main Recruiting Station in May 2004 as a result of conflict between him and his station commander, first sergeant and company commander which rose to such a level the applicant deemed it necessary to seek civilian police intervention.

6.  Counsel states Amanda B___ alleged on 18 June 2004 that the applicant touched her inappropriately and made sexual comments to her.  There were no witnesses.  SSG D___ alleged Ms. B___ told him the applicant made "very explicit sexual advances [and] tried to enter her vehicle."  A close examination of her statement reveals there is no mention of the applicant trying to enter her vehicle and no mention of any physical sexual advances.  The applicant denied any inappropriate communication with Ms. B___.

7.  Counsel states the statements by Ms. B___, SSG D___, and the applicant were taken in conjunction with an Army Regulation 15-6 investigation.  The IO was Captain L___, the same Captain L___ who conducted the Ms. A___ investigation.  The use of Captain L___ as the IO in the Ms. B___ case makes any finding by him inherently suspect.  This is demonstrated by his findings where he stated:

	"(The applicant) does have a pattern of sexual harassment complaints.  (the applicant) has had a similar accusation made against him by another applicant by the name of Kayla M. A___ on March 2004."

8.  Counsel states Captain L___ knew the allegation was unsubstantiated as he had investigated the matter.  He failed to mention any exonerating circumstances of which he had full knowledge.  Captain L___ went on to state:

	"Also, on 15 April 2003, Cpt Benjamin G___ conducted an informal 15-6 investigation on (the applicant).  The complaint was that (the applicant) made derogatory comments to different women from five different stores at the Mall of Louisiana."

9.  Counsel states Captain L___ again failed to mention the allegations were totally unsubstantiated.  His bias was palpable.

10.  Counsel states that, further, the ROI failed to note Ms. B___ said nothing about the applicant trying to hold her ankles during the APFT, yet SSG D___ and the IO ascribed great importance to SSG D___'s perception that Ms. B___ was distressed.  It is curious at best that Ms. B___ would not mention that attempted physical touching if she was so sensitive to the applicant's advances.  

11.  Counsel states that, in the end, there was an allegation by Ms. B___ about an oral communication by the applicant with no forensic support or corroboration followed by a denial by the applicant.  That is hardly proof beyond a reasonable doubt as is required in an Article 15 setting.  

12.  Counsel states the applicant was fully aware of the Army Regulation 15-6 investigation when, on 21 July 2004, Lisa C___ stated the applicant rubbed her leg and made sexual comments to her.  The applicant received a counseling statement for those allegations and responded by denying the allegation.        The allegation was never investigated but became the second charge of the Article 15.  Counsel was unclear how an uninvestigated charge with no corroboration could amount to proof beyond a reasonable doubt.

13.  Counsel states what was clear was that senior members of the recruiting station were willing to vouch for the applicant's character.  Allegations are not proof beyond a reasonable doubt.  A recruiter is an easy target for such allegations and more than a mere allegation without some corroboration is necessary to convict.

14.  Counsel provides:  (TAB A) the Article 15; (TAB B) a relief from recruiting duty memorandum dated 18 October 2004; (TAB C) an undated termination of SDAP memorandum; (TAB D) the Article 15 appeal; (TAB E) the applicant's Enlisted Record Brief; (TAB F) 13 Noncommissioned Officer Evaluation Reports and/or Academic Evaluation Reports; (TAB G) 10 award orders/approved recommendations for awards; (TAB H) a Field Grade Punishment Worksheet; (TAB I) a DA Form 4187 (Personnel Action) dated 7 August 2004; (TAB J) a memorandum, dated 15 April 2003, Subject:  Investigation of (the applicant); (TAB K) a sworn statement from Kayla A___ dated 9 March 2004; (TAB L) a sworn statement from the applicant dated 19 November 2003; and (TAB M) a letter from Kayla A___'s grandmother dated 24 November 2003.

15.  Counsel also provides:  (TAB N) an East Baton Rouge Parish Sheriff's Office police report; (TAB O) a sworn statement (pages 1, 3, and 5 of 6 pages only) from Amanda B___ dated 18 June 2004; (TAB P) a sworn statement from SSG D___ dated 21 June 2004; (TAB Q) a sworn statement from the applicant dated 21 June 2004; (TAB R) a memorandum, dated 26 June 2004, subject:  Commander's Inquiry; (TAB S) a sworn statement from Lisa C___ dated 21 July 2004; (TAB T) a DA Form 4856 (Developmental Counseling Form) dated 21 July 2004 with a related memorandum for record by the applicant dated 21 July 2004; and (TAB U) one sworn statement from SFC K___ dated 9 August 2004 and one from SFC J___ dated 10 August 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 11 August 1989.  He was promoted to SSG on 1 March 2001.  He completed recruiter training around September 2002.  Around October 2002, he was assigned to the Baton Rouge Recruiting Company, U. S. Army Recruiting Battalion, New Orleans, LA.

2.  The 15 April 2003 memorandum, Subject:  Investigation of (the applicant), indicated that on 11 March 2003 D___, a clerk at the Merle Norman store in the Mall of Louisiana, alleged the applicant made sexually harassing comments to her after she asked him to judge the store's "Most Kissable Lips" contest.  On      12 March 2003, Mall Security alleged the applicant made derogatory comments to women from five different stores and escorted him off the premises.  The IO, Captain G___ indicated D___ told her, in part, that the applicant would "love to deep tongue kiss her and grab her ass."  D___ said she felt uncomfortable with the applicant's statement, but to get his attention away from her she explained the contest to him.  He visited the winner of the contest, a clerk from Rockport Shoes, to try to interest her in the Army.  She was not interested, so he left the mall.  Mall Security then inquired as to his whereabouts because they received tips he was harassing women in several stores.  The women interviewed by the IO indicated none of them had made a complaint.  The enclosures to the investigation are not available.

3.  Captain G___ found there was insufficient evidence to indicate the applicant made the alleged comments to D___ and, given the available information and concrete evidence, it was just one person's word against the other's.  Captain G___ found that, given all the available information, actions taken by the applicant did not constitute an illegal recruiting practice.

4.  In a sworn statement dated 19 November 2003, the applicant stated he had received a call from Kayla A___'s grandmother, who told him Kayla was thinking about not going into the Army.  He went to her house and talked to Ms. A___ and her grandparents.  After he talked to her, she and her grandmother argued.  Ms A___ stated she wanted out of the Army because of her friends.  She said she was told she could say she was a homosexual, or she had AIDS, or she lied on her paperwork, or she had a relationship with her recruiter to get out of the Army. 

5.  By letter dated 24 November 2003, Kayla A___'s grandparents stated she wanted to get out of the Army.  She brought some very serious charges against the applicant, accusing him of sexual harassment.  They stated they had met the applicant and knew without a doubt he would never jeopardize his family or his future by doing that.  Kayla, on the other hand, would stop at nothing to get what she wanted.  They did not think the accusations were true or founded.  

6.  In a sworn statement (partially cut off in the right margin), dated 9 March    2004 (sic), Ms. A___ stated the applicant was taking her to New Orleans for her testing.  He asked her what kind of guys she dated and what her age limit was and if she would ever consider making (cutoff).  [She] said she would not.  She stated by then she was uncomfortable.  He told her if she (cutoff) mind, "I guess give him a try."  Then he made a point to (tell her he?) "loves his wife and kids, & how they can't have any more (cutoff) ever did do anything it would be just sex."

7.  In a memorandum dated 17 March 2004, the 5th Recruiting Brigade Chaplain recommended the applicant receive a compassionate transfer from his New Orleans recruiting battalion to another battalion.  He stated the applicant's presence was needed in order to give the applicant's household some sense of self and family emotional stability.  He indicated recent developments within the applicant's household and work arena have created emotional trauma.  

8.  An East Baton Rouge Parish Sheriff's Office initial report dated 28 April 2004 indicated a complaint was called in from the [applicant's] recruiting office on      26 April 2004.  When the investigating officer arrived, the applicant told the officer he wanted to file criminal charges against his first sergeant for verbal assault.  The report went on, "Comp. Stated Mr. D___ (the first sergeant) was on the verge of following up on disciplinary action against him.  Comp. Stated his wife was present at this time and was asked to leave by Mr. D___.  Comp. Stated at this time his wife left.  Comp. Stated he was then told to leave by Mr. D___.  Comp. Stated he then stepped outside and called the Sheriff's Office, because he felt threatened.  Dy. Contacted First Sgt. D__ where he stated he did order both parties to leave at which time they did.  This Dy. Found no probable cause by either party to effect an arrest."

9.  In a sworn statement dated 18 June 2004 (pages 2 and 4 of 6 pages are missing), Amanda B___ stated, in part, that on 15 June 2004 while in the recruiting office the applicant touched her playfully on the elbow and also touched her hair a couple of times.  On 16 June 2004, the applicant and SSG D___ gave her an Army Physical Fitness Test (APFT) in a nearby park.  Afterwards, SSG D___ departed and she got in her car.  The applicant approached her car while she still had the door open.  He talked to her about her next APFT.  The conversation shifted abruptly and he told her he had been married eleven years and had children but he never said he would not cheat on his wife.  She was still sitting in her car at that time and was beginning to get uncomfortable.  He tried to tell her he was just flirting with her.  He even went so far as to say that if anything happened between them it would only be a sex thing.  He spoke nonchalantly about the fact he wanted to have sex.  She wanted to tell him to leave but she was aware she was in a park early in the morning with few people about and she did not know how the applicant would handle that.  She did her best to change the subject and finally was able to drive off.

10.  Along with the sworn statement, a typewritten statement, dated 16 June 2004 and signed by Amanda B___ was filed in the applicant's OMPF.  In this statement, Ms. B___ stated she was sitting in her car after the test trying to find some way out of the conversation the applicant was having with her.  She told him that flirting was one thing and he needed to know where to draw the line.  As he said that he tried to sit on the floorboard next to the driver's seat.  After she finally left, she immediately called SSG D___ and told him what had occurred.  

11.  In a sworn statement dated 21 June 2004, SSG D___ stated the applicant volunteered to hold Ms B___'s feet during the APFT.  Ms. B___ had stated earlier that the applicant made her uneasy so he, SSG D___, held her feet.  Later that morning, he returned a telephone call from Ms. B___.  She told him the applicant had made very explicit sexual advances and tried to enter her vehicle with her.  She stated he had a habit of touching her every time he could in their office.  

12.  In a sworn statement dated 21 June 2004, the applicant stated he talked to Ms. B___ for only about 5 minutes after SSG D___ left and only about how she could improve her APFT score.  He stated he never sat in her vehicle and never flirted with her.

13.  By memorandum dated 26 June 2004, Subject:  Commander's Inquiry, Captain L___, the IO, found there was sufficient credible evidence to indicate the applicant sexually harassed Ms. B___.  Captain L___ noted Ms. B___ was a mature individual with a Master's Degree who was very motivated to join the Army.  She had nothing to gain from making such an accusation against the applicant.  The IO noted the applicant had a pattern of sexual harassment complaints and cited the Kayla A___ complaint and Captain G___'s April 2003 investigation.  The IO attached the Kayla A___ complaint and the April 2003 investigation to his report.

14.  In a sworn statement dated 21 July 2004, Lisa C___ stated the applicant told her that if she "…were to tell him to bring me home and have sex with me he would have to think really hard about it because he found me attractive and he also has a wife…"  She also stated he touched her as well, starting out picking the seam on her jeans above her knee then began rubbing her leg.

15.  On 21 July 2004, the applicant was counseled regarding Lisa C___'s complaint.  The incident had occurred on 19 July 2004.   When she returned to the Recruiting Station on 21 July 2004 and was told the applicant was going to take her to the test area, she stated she did not want to go with him due to his inappropriate behavior.  In a separate statement dated 21 July 2004, the applicant appeared to be explaining the events that occurred on 19 July 2004 and appeared to be denying he inappropriately touched Lisa C___.

16.  By memorandum dated 22 July 2004, the applicant's commander requested the applicant's SDAP be suspended due to his pending Article 15 action for inappropriate behavior with a recruiting applicant and another incident that had occurred with another female recruiting applicant the day before.  

17.  In an undated memorandum, the Commander, U. S. Army Recruiting Battalion, New Orleans notified the applicant his SDAP was terminated the date he was suspended from recruiting duties pending relief.

18.  On 7 August 2004, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for two charges of sexual harassment.  His punishment was a reduction to pay grade E-5 and a forfeiture of $1184.00 pay per month for two months (suspended).  

19.  The applicant appealed the punishment.  His counsel contended, in part, the applicant had been the subject of three investigations, which resulted in unsubstantiated claims, not to mention many of the investigations were not conducted in accordance with Army Regulation 15-6.  Counsel contended the same IO was appointed twice, which posed a serious conflict of interest.  Counsel contended the statements made should be given the appropriate weight they deserve and noted the statements were made by some who may have had a motive to lie and were under investigation themselves.  

20.  The applicant provided two sworn statements from E-7s at the Recruiting Station. They stated the applicant was a dedicated and hard working recruiter who always helped anyone who needed help.  One E-7 stated he never saw inappropriate behavior on the part of the applicant with regard to females.  

21.  The applicant's appeal was denied on 8 September 2004.  

22.  By memorandum dated 18 October 2004, Subject:  Relief and Reassignment from Recruiting Duty, the applicant acknowledged receipt of his notification of relief and reassignment from recruiting duty.

23.  Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice.  Chapter 3 states a commander will personally exercise discretion in the non-judicial process by evaluating the case to determine whether proceedings under Article 15 should be initiated; determining whether the Soldier committed the offense(s) where Article             15 proceedings are initiated and the Soldier does not demand trial by court-martial; and determining the amount and nature of any punishment if punishment is appropriate.  

24.  Army Regulation 27-10 also states the commander of the alleged offender must ensure the matter is investigated promptly and adequately.  The investigation should provide the commander with sufficient information to make an appropriate disposition of the incident.  The investigation should cover (1) whether an offense was committed; (2) whether the Soldier was involved; and (3) the character and military record of the Soldier.  Usually the preliminary investigation is informal and consists of interviews with witnesses and/or review of police or other informative reports.  If, after the preliminary inquiry, the commander determines, based on the evidence currently available, the Soldier has probably committed an offense and a nonjudicial punishment procedure is appropriate, the commander should take action.  Before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense(s)

25.  Army Regulation 601-1 (Assignment of Enlisted Personnel to the U. S. Army Recruiting Command), paragraph 5-6 states recruiters may be identified as unsuitable for any of several listed reasons including failure to meet or maintain acceptable standards of conduct, to include involvement in unfavorable incidents or commission of acts which adversely reflect on the Army and the recruiter and which violate civil law or the UCMJ.  

26.  Army Regulation 601-1, paragraph 5-7 states recruiting battalion and recruiting brigade commanders are authorized to suspend USAREC personnel within their respective commands who are identified as unsuitable according to the criteria specified in paragraph 5-6.  Suspended recruiters are not entitled to SDAP because they are removed from their recruiting duties.  Termination of SDAP is effective on the date of suspension.

DISCUSSION AND CONCLUSIONS:

1.  Counsel noted an ROI in March 2003 had concluded allegations of sexual harassment against the applicant were unfounded.  He noted Kayla A___ had made allegations of sexual harassment against the applicant in March 2004 but her grandparents backed up the applicant's contention she would do anything to get out of her Army commitment.  Counsel contended Ms. A___'s charge was not substantiated after a cursory investigation by Captain L___.  It is noted there is no evidence of record and counsel did not provide any to show who investigated this charge.

2.  Counsel contended the applicant moved from Baton Rouge South to Baton Rouge Main Recruiting Station in May 2004 as a result of conflict between him and his station commander, first sergeant and company commander which rose to such a level the applicant deemed it necessary to seek civilian police intervention.  However, the only available evidence concerning his move is a    17 March 2004 memorandum from the 5th Recruiting Brigade Chaplain.  The memorandum indicated the reason for the move was primarily a family problem.  It is noted an East Baton Rouge Parish Sheriff's Office initial report dated 28 April 2004 indicated the applicant called in a complaint and wanted to file criminal charges against his first sergeant for verbal assault.  However, the report concluded there was no probable cause by either party to effect an arrest.

3.  Counsel contended there were no witnesses to Amanda B___'s allegation the applicant touched her inappropriately and made sexual comments to her.  He contended that, while SSG D alleged Ms. B___ told him the applicant made "very explicit sexual advances [and] tried to enter her vehicle," a close examination of her statement reveals there is no mention of the applicant trying to enter her vehicle and no mention of any physical sexual advances.  It is noted Ms. B___'s complete sworn statement was not available.  However, contrary to counsel's contentions, in her 16 June 2004 typewritten statement she stated the applicant tried to sit on her floorboard next to the driver's seat.

4.  Counsel contended Captain L___ investigated Kayla A___'s allegations against the applicant; however, there is no evidence of record and he does not provide any that shows Captain L___ investigated that allegation.  Nevertheless, counsel's contention the use of Captain L___ as the IO in the Ms. B___ case makes any finding by Captain L___ inherently suspect simply because he might have conducted both investigations is not supported by any evidence.  To the contrary, it appears that, since the Kayla A___ allegations were not substantiated it would prejudice the same investigator to the opposite extreme; i.e., innocence of one incident most likely means innocence in the next incident.

5.  Counsel contended Captain L___'s inherently suspect findings were demonstrated when he stated the applicant had a pattern of sexual harassment complaints (i.e., a similar accusation made against him by Ms. A___ in March 2004 and an April 2003 investigation where the complaint was the applicant made derogatory comments to different women from five different stores at the Mall of Louisiana).  However, in these two instances Captain L___'s findings were statement of facts.  Counsel fails to note Captain L___ attached the March 2004 and April 2003 findings to his report where they were available for the commander's review and comparison to the current allegations.

6.  Counsel contends Ms. B___'s allegations were not supported by forensic evidence or corroboration and were followed by the applicant's denial and contended that was hardly proof beyond a reasonable doubt as is required in an Article 15 setting.  He contended the allegation by Lisa C___ was never investigated but became the second charge of the Article 15 and counsel was unclear how an uninvestigated charge with no corroboration could amount to proof beyond a reasonable doubt.

7.  Army Regulation 27-10 requires a commander to exercise discretion in the non-judicial process by evaluating the case to determine whether proceedings under Article 15 should be initiated and determining whether the Soldier committed the offense(s).  The regulation states the commander of the alleged offender must ensure the matter is investigated promptly and adequately but the investigation is usually informal as long as it provides the commander with sufficient information to make an appropriate disposition of the incident.  Neither Army Regulation 27-10 nor Army Regulation 15-6 prohibit using the same officer to informally investigate allegations into misconduct that results in nonjudicial punishment.  The regulation does not even require the investigation be committed to writing.  It does require the imposing commander to be convinced beyond a reasonable doubt that the Soldier committed the offense(s).

8.  However, in the absence of evidence to the contrary, the Board presumes the applicant's commander considered the findings of an informal investigation of Lisa C___'s allegations and was convinced beyond a reasonable doubt that the applicant had committed the misconduct alleged.  The Board presumes his commander considered Ms. B___'s allegations and determined the applicant had committed the misconduct alleged.  The applicant has provided no motive or other explanation for Ms. B___ or Lisa C___ to fabricate their allegations.

9.  The applicant and counsel provide insufficient evidence to show the applicant's commander was not convinced beyond a reasonable doubt that the applicant committed the offenses.  There is insufficient evidence to show the punishment imposed was too harsh.  There is insufficient evidence to show the applicant was improperly relieved from recruiting duties or that his SDAP was improperly terminated.  Therefore, there is insufficient evidence to grant any of the additional relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jtm___  __jbg___  __jrm___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case 

are insufficient as a basis for correction of the records of the individual concerned.




__John T. Meixell_____
          CHAIRPERSON


INDEX

CASE ID
AR20050001501
SUFFIX

RECON

DATE BOARDED
20051020
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.
126.04
2.

3.

4.

5.

6.